Hensley and Comcare
[2009] AATA 590
•7 August 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/6238
General Administrative Division )
Re: Marissa Hensley
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: J.W. Constance, Senior Member
DATE: 7 August 2009
PLACE: Canberra
DIRECTION: The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by substituting the phrase “that a 10% permanent impairment has resulted from the bilateral lumbar sprain injury suffered by Ms Hensley on 1 September 2005” in Direction 1 of the decision, which is on the first page of the decision, and in paragraph 38 of the decision, with the phrase “that a 13% permanent impairment has resulted from the bilateral lumbar sprain injury suffered by Ms Hensley on 1 September 2005”.
……….………[sgd]……………………
J.W. Constance, Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 590
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6238
GENERAL ADMINISTRATIVE DIVISION ) Re MARISSA HENSLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Wilkins MBE, MemberDate7 August 2009
PlaceCanberra
Decision 1. The reviewable decision of Comcare made 14 November 2007 is set aside and the matter is remitted for reconsideration in accordance with the following directions:
1) that a 10% permanent impairment has resulted from the bilateral lumbar sprain injury suffered by Ms Hensley on 1 September 2005;
2) that a less than 10% permanent impairment has resulted from the sprain of specified sites of the left hip and thigh suffered by Ms Hensley on 1 September 2005
2. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Hensley.
................[sgd].........................
J.W. Constance, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment – accepted injury to lumbar spine – Tribunal accepts lower back impairment is permanent – Tribunal accepts left hip and thigh impairment is permanent – degree of permanent impairment – decision under review set aside and remitted with directions
Safety, Rehabilitation and Compensation Act 1988 (Cth) – Section 24
Re Halliday and Comcare (1994) 19 AAR 431
REASONS FOR DECISION
7 August 2009 J.W. Constance, Senior Member
Dr P. Wilkins MBE, MemberINTRODUCTION
1. On 1 September 2005 Ms Hensley was injured at work when she fell down a flight of stairs. Comcare accepted liability to compensate her for the incapacity which resulted from a number of injuries she suffered in the fall. These injuries included:
· bilateral lumbar sprain;
· sprain of specified sites of left hip and thigh.
In April 2007 Ms Hensley applied for compensation for these injuries on the basis that each of them had resulted in permanent impairment in accordance with section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
2. Comcare rejected the claim and Ms Hensley is seeking a review of this decision.
STATUTORY BACKGROUND
3. Section 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) relevantly provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
…
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
ISSUES FOR DETERMINATION
4.The following issues arise.
1)Has Ms Hensley suffered
a.an injury to her lower back and/or
b.an injury to her left hip and thigh
which has resulted in impairment?
2)If so, is either impairment permanent?
3)If so, what is the degree of permanent impairment in each case?
EVIDENCE AND FINDINGS OF FACT
5. Unless stated otherwise the findings of fact are based on the evidence of Ms Hensley. We are satisfied of the facts found on the balance of probabilities.
6. Ms Hensley suffered the injuries in respect of which the claim is made when she fell down the stairs on 1 September 2005. These injuries arose out of, or in the course of, her employment by the Department of Environment, Heritage, Water and the Arts. These facts are not in dispute.
7. Ms Hensley gave evidence that from the time of the incident she suffered substantial pain in her lower back and left hip. She took pain relief medication and received cortisone injections to her hip. The injections did not give her any relief. She underwent surgery to repair a tear in the labrum of her left hip in March 2006. This procedure reduced the pain in her hip but did not relieve it entirely. Ms Hensley said that she has continued to suffer pain in her lower back, left hip and left leg. She also suffers bouts of a “constant searing pain” down her left leg to the calf.
8. In addition to suffering pain as she described, Ms Hensley gave evidence that her injuries continue to have the following effects:
·her left leg and hip “give way”, particularly if she has been working long hours and has not been diligent with her stretching exercises;
·she cannot drive a car as far as she could prior to the incident without resting;
·she cannot remain seated for more that about an hour and needs to move around frequently at her work station;
·she has changed the way in which she undertakes household tasks by doing less at one time and by using cleaning equipment which require less lifting;
·her body is less flexible than before the incident;
·she has been unable to continue a course of study at the Canberra Institute of Technology;
·she is no longer able to do tasks such as cleaning windows and gardening.
When asked, Ms Hensley said that she can squat to pick up items off the floor and when doing exercises at a gym she can squat to the position that her thighs are at right-angles to her torso. Her fitness regime includes stretching and walking.
9. Having observed Ms Hensley give evidence we are satisfied that she was an honest witness and we accept her evidence as to the symptoms which she has suffered and the changes in her activity since the incident. In reaching this conclusion we took into account that Ms Hensley was not challenged as to her description of the pain experienced by her.
Medical Evidence and Reports
10. Ms Hensley consulted her General Practitioner, Dr Ragg, on the day following her fall. At the time, Dr Ragg noted that she had bruising over the L3-L4 lumbar region and that she was complaining of sciatica-like pain on the right.[1] Dr Ragg noted significant improvement in the condition of her hip after surgery in early 2006, but that there had been fluctuations in her condition since that time. On 23 October 2007 he reported that “her condition over the last 6 months has not manifestly improved”, and he did not anticipate significant improvement.[2] However, Dr Ragg did not specify the particular symptoms which he regarded as continuing.
[1] Ex. R2.
[2] Ex. R2.
11. In March 2008 Dr Le Leu, Occupational Physician, assessed Ms Hensley at the request of her Solicitors for the purpose of these proceedings. He provided reports dated 14 March 2008[3] and 9 December 2008[4] and gave evidence. He assessed Ms Hensley in respect of both her lower back and her left hip injury.
[3] Ex. A1.
[4] Ex. A2.
12. On 14 March 2008 Dr Le Leu reported that Ms Hensley continued to suffer the following symptoms which he attributed to the 2005 injury to her low back:
oShe has pain from the L4-5 level going down through the left buttock into the left hip and into the side of the left thigh. It extends to the knee but not beyond.
oOccasionally both calves become “really tight” but she stretches them and that relieves the symptom short-term but it soon comes back (she uses an elastic band for stretching).
…
oThe back pain is increased by anything involved [sic] as she puts it “bilateral movements” such as twisting or turning or long periods of sitting.
oIt is improved by stretching which gives short relief.
oShe says she feels like she has always had a numbness in the left buttock (by “always” she meant from the time of the accident); that continued to be there during the consultation.
o…
oShe says her knees might give way if she does anything consistently for 3-4 days. She says she has fallen as a result of that a couple of times. When her knees lock she tends to trip.
oShe can walk up a flight of stairs so long as she takes them steadily.
oShe feels weak in the left leg continually when she weight bears.[5]
[5] Ex. A1 pp. 4-5.
13. He reported also the following symptoms which in his opinion were a result of the injury to her left hip:
oThe “labral pain”: she recalls that she felt it in the upper, outer thigh on movement; she always has pain there and that is why she cannot sleep on the left side.
oWhen she walked it would become more painful and the pain seemed to go across into the left groin.
o…
oShe gets more pain in the left hip – not a mere niggle; if she walks a little for long distances she describes this as “an ache. It may also be like a throbbing pain.
oThe left hip pain feels like it is right in the joint but it also goes down through the left lateral thigh to the knee.
oIt is tender to touch over that area.[6]
[6] Ex. A1 p. 5.
14.On the question of the continuation of these symptoms Dr Le Leu stated:
Her injury occurred two years and three months ago and she continues to have active symptoms despite surgery to the left hip and a lot of conservative treatment including pain management. The likelihood of improvement in her condition is slim now. She has undertaken all reasonable rehabilitative treatment and continues to try to keep active and do exercises.[7]
[7] Ex. A1 pp. 12-13.
15. Associate Professor Oakeshott, Consultant Surgeon, assessed Ms Hensley in June 2008 at the request of Comcare’s Solicitors. He provided reports dated 19 June 2008[8] and 5 March 2009[9] and gave evidence.
[8] Ex. R3.
[9] Ex. R4.
16. It is the opinion of Professor Oakeshott that Ms Hensley has made ”a complete and permanent recovery” from the injuries which she suffered in 2005.[10] In his view Ms Hensley exaggerated her symptoms during his examination of her.
[10] Ex. R3 p. 13.
17. We also have in evidence a report by Dr Coyle, Orthopaedic Surgeon.[11] He assessed Ms Hensley at the request of her solicitors in March 2007. Dr Coyle was not called to give evidence.
[11] Ex. R1.
18. In the opinion of Dr Coyle, Ms Hensley was suffering the following relevant symptoms at the time of his assessment:
oCentral and left-sided low back pain present almost constantly radiating to the left hip and occasionally radiating when back pain is worse to the lateral aspect of the left thigh and calf of left leg…
oLeft hip pain and tenderness (which she distinguishes from back pain radiating to her left hip) which has been somewhat helped by surgical treatment.[12]
[12] Ex. R1, T108 p. 192.
In his view these symptoms were ongoing but improvement was occurring and may continue to occur for at least another twelve months.
DETERMINATION OF THE ISSUES
Has Ms Hensley suffered an injury to her lower back which has resulted in an impairment?
19.“Impairment” is defined in subsection 4(1) of the Act:
Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
20. Comcare does not dispute that Ms Hensley suffered an injury being a sprain of her lumbar spine when she fell in September 2005. Ms Hensley has suffered pain in her lower back since her fall. She did not suffer this pain in the weeks prior to the incident. The opinions of Dr Le Leu, Dr Coyle and Dr Ragg corroborate the evidence of Ms Hensley that she continues to suffer pain from her lower back injury.
21. Associate Professor Oakeshott expressed the opinion that Ms Hensley did not suffer from an injury to her lumbar spine in June 2008. He did not express an opinion that she did not suffer an injury to her lumbar spine at the time she fell.
22. We prefer the opinions of Dr Ragg, Dr Le Leu and Dr Coyle to that of Associate Professor Oakeshott. Dr Ragg has been Ms Hensley's general practitioner for many years and has been consulted by her on numerous occasions. Dr Le Leu undertook a detailed assessment of Ms Hensley. Their opinions and that of Dr Coyle are consistent with the evidence of Ms Hensley. In contrast, the opinion of Associate Professor Oakeshott is in conflict with the evidence of Ms Hensley as to the pain she has experienced. Ms Hensley was not challenged as to this evidence. We have accepted her as an honest witness.
23. On the basis of the evidence and opinions referred to in the preceding paragraph we are satisfied that Ms Hensley has suffered an injury to her lower back and that this injury has resulted in impairment. Ms Hensley has suffered ongoing pain in her back. This amounts to a malfunction of that part of her body within the definition of “impairment”.
24. Our conclusion is in accordance with the decision of the Tribunal in Re Halliday and Comcare (1994) 19 AAR 431 at 441:
… there will be an impairment of part of the body … if it malfunctions in the sense that it fails to perform normally or properly.
Is the impairment which has resulted from the injury to the lower back permanent?
25.Considering the requirements of subsection 24(2) we take into account that:
·Ms Hensley has suffered pain in her lower back continuously since she was injured in 2005;
·it is unlikely that her condition will improve;
·although Dr Coyle considered that there may be some improvement he expected that any improvement would take place by about March 2008;
·Ms Hensley has undertaken all reasonable rehabilitative treatment.
On the basis of these facts we are satisfied that the injury to Ms Hensley's back has resulted in an impairment which is permanent.
What is the degree of permanent impairment which has resulted from the injury to Ms Hensley's back?
26. Table 9.17 of the Guide to the Assessment of the Degree of Permanent Impairment Second Edition provides for a 13% whole person impairment in respect of an injury to the lumbar spine in the following circumstances:
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location (may be verified by electrodiagnostic findings)…
27. “Radiculopathy” is defined at p. 112 of the Guide as “significant alteration in the function of a nerve root or nerve roots, and is usually caused by pressure on one or several nerve roots.”
28. On the basis of the evidence of Ms Hensley and the opinion of Dr Le Leu that “she has pain from L4-5 level going down through the left buttock into the left hip and into the side of the left thigh”[13] we are satisfied that Ms Hensley has dermatomal pain and therefore a significant sign of radiculopathy. Further, we are satisfied that Ms Hensley has suffered sensory loss in her left buttock and loss of muscle strength in her left hip. We have reached these findings on the basis of the evidence of Dr Le Leu. Each of these conditions is included as a significant sign of radiculopathy in accordance with Table 9.17.
[13] Ex. A1 p. 4.
29. We are satisfied that Ms Hensley has suffered a 13% whole person impairment as a result of the bilateral lumbar sprain suffered by her on 1 September 2005.
Has Ms Hensley suffered an injury to her left hip and thigh which has resulted in an impairment?
30. For the same reasons as we have stated in relation to Ms Hensley's lumbar injury, we are satisfied that the pain which Ms Hensley suffers in her left hip is an impairment. On the basis of her evidence we are satisfied that the ongoing pain is caused by the injury to her left hip and thigh suffered on 1 September 2005.
Is the impairment which has resulted from the injury to the left hip and thigh permanent?
31. On the basis of the evidence of Ms Hensley, Dr Le Leu and Dr Coyle we are satisfied that Ms Hensley has continued to suffer pain in her hip since she fell and that it is unlikely that this condition will improve in view of the time which has elapsed since the injury. Also on the basis of this evidence we are satisfied that Ms Hensley has undertaken all reasonable rehabilitative treatment for the impairment.
32.We are satisfied that the impairment is permanent.
What is the degree of permanent impairment which has resulted from the injury to Ms Hensley's left hip and thigh?
33. Counsel for Ms Hensley argued that she is entitled to compensation based on a 10% permanent impairment in accordance with Table 9.4 of the Guide. Relevant provisions which give a 10% rating are:
oFlexion restricted to less than 50°.
oFlexion contracture of 30° or greater.
oAbduction restricted to less than 5°.
oAbduction contracture of 11°-20°.
34. The measurements of Ms Hensley's left hip movement which Dr Le Leu took on 3 March 2008 included the following:
·flexion 20-25 degrees (normal 100 degrees)
·extension 10 degrees (normal 30 degrees)
·abduction 25 degrees (normal 40 degrees)
·adduction 10 degrees (normal 20 degrees).[14]
[14] Ex. A2 p. 2.
35. Ms Hensley's claim to have suffered a 10% permanent impairment depends upon an acceptance that she continues to suffer the restriction in movement recorded by Dr Le Leu when he examined her in March 2008. We do not accept that Ms Hensley suffers from such restriction on a continuing basis.
36. A restriction to 20-25 degrees of flexion out of a normal range of 100 degrees is a very substantial limitation. It is not consistent with the evidence given by Ms Hensley. This evidence included that she was able to sit in a chair, to squat, to lift her left knee to a position greater than 90 degrees to her torso and to exercise with a Swiss ball. She described the latter exercise as rolling the ball between her back and a wall down to a squatting position. We take into account also that Ms Hensley said that she continues to exercise by walking, but that she did not describe a limp such as would be occasioned by a limitation of hip flexion to 25 degrees.
37. On the evidence before us we are not satisfied that Ms Hensley meets any of the other requirements which would give her a 10% permanent impairment. It is not necessary that we consider whether there is a 2% or 5% impairment as no question of the application of the Combined Values Chart arises.
DECISION
38. The reviewable decision of Comcare made 14 November 2007 is set aside and the matter is remitted for reconsideration in accordance with the following directions:
1)that a 10% permanent impairment has resulted from the bilateral lumbar sprain injury suffered by Ms Hensley on 1 September 2005;
2)that a less than 10% permanent impairment has resulted from the sprain of specified sites of the left hip and thigh suffered by Ms Hensley on 1 September 2005.
39. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Ms Hensley.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P. Wilkins MBE, Member.
Signed: .....................[sgd]...........................................................
T. Aviram, AssociateDates of Hearing 12-13 May 2009
Date of Decision 7 August 2009
Counsel for the Applicant Ms L. Walker
Solicitor for the Applicant Ms T. Kyprianou, Pamela Coward Higgins
Counsel for the Respondent Mr D. Shillington
Solicitor for the Respondent Australian Government Solicitor
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